Football Players with Dual Nationality: To Be or Not to Be

The ability of football players to choose the national team they wish to play for, has become a rather interesting concept over the last few years. It matters not what the reasons are, but rather what the regulations say. We all need to remember that the law changes according to the needs of society and adopts certain trends. Similarly, the relevant FIFA regulations were created in order to produce clarity and certainty in this area of football law, but above all, they were created for the protection of the integrity of the sporting competition.

A few years ago, national identity, in terms of football, was a rather uncomplicated matter. With the enlargement of the European Union and new social and economic opportunities for its citizens, FIFA was  forced to consider these socio-economic changes and create the appropriate regulatory framework regarding  players' eligibility to play for the national team of their choice.

Although the FIFA regulations do take into consideration the socio-economic changes in Europe, they cannot be specific in terms of political changes and developments. FIFA would not want to take a political stand under any circumstances and its regulations have as a primary aim to safeguard the integrity of the competition and avoid, at all costs, any political involvement in the application of its regulatory framework. One would, therefore, come to the safe conclusion that its regulations would apply equally to all countries and situations.

Similarly, such regulations must also be applied purposefully and not pedantically, although the individuality of the situation must be considered. But what happens in a case where the player concerned has a dual nationality? The answer may appear to be simple but in the case of Ireland, not so simple. The Court of Arbitration for Sport had the opportunity to analyse such situation in the matter of CAS 2010/A/2071 Irish Football Association v/ Football Association of Ireland, Daniel Kearns and FIFA. The case concerned an appeal brought by the Irish Football Association [thereafter IFA] who is the national football association of Northern Ireland, against a decision by the Single Judge of FIFA's Players' Status Committee, to allow the request made by the Football Association of Ireland [the national football association of the Republic of Ireland, thereafter FAI] and Mr Kearns for the change of an association team.

At first glance, the situation may appear complicated, particularly to those who are not familiar with the relevant regulations. A closer examination, however, demonstrates that the situation is, by and large, straight forward. The Appeal, it could be argued, was brought forward as a result of the complexity of the wording of the relevant regulations, although sports lawyers should have identified the purposeful interpretation of the regulations straight away. 

To this effect and in terms of constructive analysis, there may be a respectful disagreement with the merits of the IFA's Appeal.  The IFA based its Appeal before the CAS, amongst other arguments, on Article 16 of the FIFA regulations. According to the IFA's submission, Article 16 is applicable to any player who is entitled to play for several associations on the basis of multiple nationalities whereas the FAI submitted that it is only applicable to a player who is entitled to play for several associations on the basis of a “shared nationality”, i.e. a single nationality that entitles him to represent two or more associations. 

On the facts, the correct interpretation of the current FIFA regulations would indicate that Mr Kearns had dual nationality and the applicable Article on his situation was Article 18 of the FIFA Regulations. On a proper construction of Article 18, only the following considerations had to be applied: a) Mr Kearns has a dual nationality, b) Mr Kearns had not played for an 'official' international game for the IFA, prior to his application, and c) Mr Kearns had the Irish nationality [as opposed to British] at the time of his first appearance with the national team of the Republic of Ireland. Consequently, Mr Kearns has a dual nationality and he can play either for the IFA with his British passport or the FAI with his Irish passport. The reasonable conclusion is, therefore, that Article 16 cannot apply in the present matter, as Mr Kearns has a choice, based on his dual nationality. In addition to this interpretation Mr Kearns was born an Irish national and he is not, therefore, looking to acquire a new nationality, but simply to make use of one of the nationalities he is entitled to.

Along with the Application of Article 16, the IFA also attempted to persuade the CAS Panel that the "1950 FIFA Ruling" , which stated that the relevant associations cannot select players who belong to the other association's territory or have sufficient connection with such territory,  is binding upon the two associations. Sufficient territory in this context meant the place of birth of a parent, a grandparent or continuous residence for a sufficiently long period. The IFA, therefore, submitted that the FAI, by 'poaching' Mr Kearnes, breached a binding contractual agreement, implied by conduct, between the two associations.

Such argument, however, cannot be sustained for several reasons. Firstly, the alleged agreement between the IFA and the FAI is nothing more than a convention. As such, it gives rise to nothing more than a 'gentleman's agreement' and it cannot be said to be part of a binding contract. Secondly, Article 16 was not drafted for a clarification of the situation in Ireland/Northern Ireland, nor did it come into existence to give effect to the convention between the two associations in question. In addition, no evidence was put forward by the IFA that such convention could give rise to a binding agreement that the FAI cannot select Irish citizens, living in Northern Ireland, to play for its national team. On the facts, Mr Kearns does also have an Irish nationality and, therefore, the application of Article 16 becomes redundant. Thirdly and most importantly, even if the CAS Panel was to give effect to the convention between the IFA and the FAI, such convention could not be applied to Mr Kearns, who is not a party to it. Accordingly, Mr Kearns should be entitled to exercise his rights afforded by the binding application of the FIFA Regulations.

Finally, it is evident from the CAS Panel's decision on this matter, that the interpretation of the relevant regulations requires a purposeful approach and not a pedantic one. Although the rules of sporting governing bodies may resemble the structure of an ancient building, where several parts are missing, judges always attempt to interpret the intention of the draftsman by considering the wider background of the situation the regulator attempts to remedy. The 2009 FIFA Regulations, that were applicable on Mr Kearns' application, did not come into effect towards an interpretation of the situation in Ireland/Northern Ireland. Their binding application, rather, concerns the eligibility of a player to play for a national team and his right to choose the country he wishes to represent, subject to the 3 criteria we analysed above. As long as these 3 criteria are satisfied, the historical background [or the difference of opinion] of the two associations bears no major significance. 

It is, therefore, reasonable to conclude that the decision rendered by CAS, goes a long way to clarify the situation and produces valuable guidance to any future matters of similar nature. Such decision also informs the practice of sports law and clarifies the way legal advisers must follow.

Dr. Gregory Ioannidis

15 May 2012